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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE NATIONAL SOLID WASTES MANAGEMENTASSOCIATION and REPUBLIC SERVICES OFMICHIGAN I, L.L.C., Case No. 03-60188
Hon. Marianne O. BattaniPlaintiffs,
v.
CHARTER COUNTY OF WAYNE andROBERT A. FICANO, County Executive,
Defendants.________________________________________________/
OPINION AND ORDER OF THE COURT GRANTING PLAINTIFFS’ MOTION FORDECLARATORY JUDGMENT AND DENYING DEFENDANTS’ MOTION FOR
DECLARATORY JUDGMENT AND SUMMARY JUDGMENT
I. INTRODUCTION
Before the Court are Plaintiffs’ Motion for Declaratory Relief and Defendants’ Cross-Motion
for Declaratory Judgment and Summary Judgment. On September 5, 2003, Plaintiff filed a
complaint for Declaratory and Injunctive relief, challenging the constitutionality of a county waste
disposal ordinance under the domestic Commerce Clause, foreign Commerce Clause, Foreign
Affairs Power, and substantive and procedural components of the Due Process Clause. Plaintiffs
asked the Court to declare several amendments to the ordinance (hereinafter “the Amendments”)
invalid and to enjoin their enforcement by Defendants. Defendants filed a cross-motion for
Declaratory Judgment and Summary Judgment on September 17, 2003. On September 24, 2003,
the Michigan Waste Industries Association filed a brief as amicus curiae in support of Plaintiffs’
motion.
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The Court held a hearing on October 6, 2003, with respect to Plaintiffs’ Motion for
Preliminary Injunction. The Court granted that motion on October 16, 2003, and enjoined
Defendants from enforcing the Amendments until final disposition of the case. The Court allowed
the parties additional time for supplemental briefing on their declaratory judgment motions. The
time for filing those briefs has closed. The parties agree that there are no disputed issues of fact, and
that the resolution of this case turns on an application of law. For the reasons stated below, the Court
hereby GRANTS Plaintiffs’ Motion for Declaratory Judgment and DENIES Defendants’ Motion for
Declaratory Judgment and Summary Judgment.
II. STANDARD OF REVIEW
Fed. R. Civ. P. 56 states that summary judgment “shall be rendered forthwith if the pleadings,
[etc.,] show that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” In addition, the Declaratory Judgment Act provides, in pertinent
part, that: “[i]n a case of actual controversy within its jurisdiction...any court of the United States,
upon the filing of an appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be sought.” 28
U.S.C. § 2201(a) (1994). Such ruling of the Court “[s]hall have the force and effect of a final
judgment or decree and shall be reviewable as such.” See id. The granting of declaratory relief “[i]s
appropriate where it will clarify and settle the legal relations at issue and provide relief from the
uncertainty caused by the controversy which gave rise to the proceeding.” Waste Mgmt. of Mich.
v. Ingham County, 941 F.Supp. 656, 668 (W.D. Mich. 1996) (citation omitted).
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III. STATEMENT OF FACTS
1. The Parties
Plaintiff National Solid Wastes Management Association (“NSWMA”) is a non-profit trade
association that represents for-profit companies providing solid and medical waste collection,
recycling and disposal services. Plaintiff Republic Services of Michigan is a member of NSWMA,
and owns and operates the Carleton Farms Landfill in Wayne County, Michigan. Defendant Wayne
County, together with the Wayne County Commission, is responsible for solid waste planning,
implementation and enforcement in Wayne County. Defendant Robert Ficano (“Ficano”) is Wayne
County Executive. Amicus Curiae Michigan Waste Industries Association (MWIA) is a Michigan
non-profit corporation representing approximately fifty Michigan-based companies dedicated to the
collection, processing, recycling and disposal of solid waste within Michigan. MWIA’s members
consist of nearly every private entity owning or operating a municipal solid waste landfill in
Michigan, including some in Wayne County.
2. Michigan Waste and Relevant Background
A report prepared by the Michigan Department of Environmental Quality (“MDEQ”) in
March 2003 indicates that, in 2002, eighty percent of the solid waste disposed of in Michigan’s solid
waste landfills came from Michigan, twelve percent from Canada, and eight percent from several
of Michigan’s sister states, including New Jersey, New York, Ohio, Pennsylvania, Indiana, Illinois
and Connecticut. (Pls.’ Br. in Supp. of Mot. for Decl. and Inj. Relief, Ex. 3). On May 28, 1999,
former Michigan governor John Engler established the Michigan Solid Waste Importation Task
Force (“Task Force”) to address the problem of Michigan’s diminishing landfill space. The Task
Force was charged with identifying the trends, causes and consequences of imported solid waste;
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meeting with members of Congress to encourage the passage of federal legislation allowing
Michigan to control solid waste importation; and, making recommendations to the Governor and the
MDEQ regarding the control of interstate and international waste imports.
On November 22, 2000, the Task Force submitted an official report to the Governor and the
MDEQ stating that significant increases in waste imports would undermine Michigan’s commitment
to waste planning and hinder the growth of recycling in Michigan. The report acknowledged that
Michigan’s past legislative efforts to restrict waste imports were unsuccessful, and concluded that
“[t]he only remedy sure to withstand legal challenge is one based on authority granted to states by
Congress.” (Pls.’ Br., Ex. 1). The Task Force recommended the development of federal, as opposed
to state, waste legislation.
On July 23, 2003, a Congressional hearing was held to discuss, in part, proposed waste
regulation legislation H.R. 382, H.R. 411 and H.R. 1730. The transcript from that hearing contains
the following statement from Michigan Representative John Dingell:
States have been searching for a legal means to control shipments of municipalsolid waste from other States and other countries. Unfortunately, the result hasonly been costly and unproductive litigation. State laws have been struck downby the courts because under the commerce clause of the Constitution, onlyCongress can grant the States and localities the right to fully regulate wasteimports into their jurisdiction. (Pls.’ Additional Ex., Ex. 18).
The hearing transcript also contains a prepared statement by Ficano discussing the issue of
waste imported to Michigan from Canada and other states. In that statement, Ficano acknowledged
that “[t]ry as we might to stem the tide of imported waste coming into our County, we are limited
by law, precedent, and international agreements.” (Pls.’ Ex. 18). He also noted that “[d]espite our
best efforts, the ultimate problem of imported waste coming into Michigan, and especially Wayne
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County, demands Federal intervention. Congress must enact laws to allow States to deal with the
flow of trash between States.” (Id.) In imploring Congress to enact authorizing legislation, Ficano
recognized that Wayne County’s authority to act on its own was “severely limited.” (Id.)
3. The Amendments
The Michigan Solid Waste Management Act governs the disposal of waste in the State of
Michigan. MICH. COMP. LAWS § 324.11501 (1999) et seq. The Act authorizes a city, county or
district to create a solid waste management program once it has received proper certification by the
appropriate health department. M.C.L. § 324.11508. Wayne County has obtained this certification
from the MDEQ, and has enacted the Wayne County Solid Waste Management Ordinance
(WCSWMO) to govern waste disposal in Wayne County.
On August 17, 2003, the Wayne County Commission passed a resolution adopting several
amendments to the WCSWMO. The Amendments were introduced to the Wayne County
Commission by Ficano and Kurt Heise, Director of the Department of Environment, for the purpose
of achieving “a reduction in the waste stream being disposed of in county-based landfills and
confirm[ing] the County’s commitment to conserving landfill space and maximizing the life of
landfills.” (Defs.’ Resp., Ex. D).
Section 141.1 of the Amendments provides:
It shall be unlawful for an owner or operator of a landfill to acceptsolid waste from a municipality, county, state, country or othergenerator that is not regulated by a beverage container deposit lawthat provides regulation of beverage containers and has bottle returnrates comparable to those reported by the Michigan Department ofTreasury for Michigan’s “Beverage Containers Initiated Law of 1976”
1The Michigan Bottle Bill requires beverage dealers to provide a minimum deposit of tencents on all returnable beverage containers. M.C.L. 445.571-.572.
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M.C.L. 445.571-445.576 (Bottle Bill).1
Sections 141.2 and 141.3 require Wayne County landfill owners and operators to obtain a signed
certificate from their customers attesting to their satisfaction of the conditions listed in section 141.1.
Sections 304.1 and 304.2 of the WCSWMO subject violators to civil sanctions, including fines of
up to $10,000, while section 305 provides for criminal penalties, including imprisonment.
Ficano officially executed the Wayne County resolution on August 13, 2003, setting October
1, 2003 as the Amendments’ enforcement date. That date was suspended when the Court granted
Plaintiffs’ Motion for Preliminary Injunction on October 16, 2003.
IV. ANALYSIS
Plaintiffs challenge the constitutionality of the Amendments on several grounds, including
the Domestic and Foreign Commerce Clause, the Foreign Affairs power, and the Due Process
Clause. Because the Court deems the Amendments invalid under the domestic and foreign
components of the Commerce Clause, it will not address Plaintiffs’ remaining constitutional claims.
As to Plaintiffs’ Commerce Clause challenge, Plaintiffs contend that the Amendments
discriminate against interstate and foreign commerce by impeding the free flow of non-Michigan
waste into Wayne County. According to Plaintiffs, the Amendments are discriminatory in that they
create an unlawful distinction between in-state waste, which automatically qualifies for disposal in
Wayne County under the Amendments, and out-of-state waste, which does not. Defendants respond
that the Amendments constitute a neutral waste disposal regulation that applies equally to in-state
and out-of-state waste. According to Defendants, any effects had by the Amendments on interstate
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or foreign commerce are merely incidental.
1. Law
The Commerce Clause empowers Congress “to regulate commerce with foreign nations, and
among the several states.” U.S. CONST. art. I, § 8, cl. 3. While the Commerce Clause affirmatively
grants Congress the power to regulate interstate and foreign commerce, it also implicitly restrains
the ability of the several states to discriminate against or impose substantial burdens upon interstate
or foreign commerce. New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 273 (1988); City of
Philadelphia v. N.J., 437 U.S. 617, 622-23 (1978); E. Ky. Res. v. The Fiscal Ct. of Magoffin County,
Ky., 127 F.3d 532, 539-40 (6th Cir. 1997); Nat’l Foreign Trade Council v. Natsios, 181 F.3d 38, 61-
62 (1st Cir. 1999). The Commerce Clause contains no explicit language to this effect, but courts
have long recognized that the limitation on a state’s power to burden interstate and foreign
commerce derives from the negative or “dormant” aspect of the Clause. Gen. Motors Corp. v. Tracy,
519 U.S. 278, 287 (1997) (citations omitted). It is well-established that solid waste is an article of
commerce. Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dept. of Natural Res., 504 U.S. 353, 359
(1992); City of Philadelphia, 437 U.S. at 622-23.
When a state unconstitutionally regulates the movement of interstate commerce, it is said to
violate the dormant “domestic” or “interstate” Commerce Clause. This aspect of the Commerce
Clause prohibits states from “‘[a]dvanc[ing] their own commercial interests by curtailing the
movement of articles of commerce, either into or out of the state.’” Fort Gratiot, 504 U.S. at 359
(quoting H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 535 (1949)). In addition, when a state
unconstitutionally regulates the movement of foreign commerce, it is said to violate the dormant
“foreign” Commerce Clause. Natsios, 181 F.3d at 61-62. State or local laws that burden foreign
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commerce “‘are subjected to a more rigorous and searching scrutiny.’” Norfolk S. Corp. v. Oberly,
822 F.2d 388, 404 (3d Cir. 1987) (quoting S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 100
(1984)). This rule serves “the need of ensuring uniformity among the states in the area of foreign
trade.” Id. at 399.
Since the domestic and foreign aspects of the Commerce Clause are founded upon
comparable principles, the Court will conduct the same analysis with respect to Plaintiffs’ domestic
and foreign Commerce Clause challenges. The Supreme Court has constructed a two-step inquiry
to guide courts evaluating the constitutionality of state or local laws under the Commerce Clause.
Or. Waste Sys., Inc. v. Dep’t. of Quality of the State of Or., 511 U.S. 93, 99, 100-01 (1994); Natsios
181 F.3d at 67 (applying the two-part test to foreign Commerce Clause challenge). Under the first
step, the Court determines “whether the statute directly burdens interstate commerce or discriminates
against out-of-state interests.” E. Ky. Res., 127 F.3d at 540. Discrimination is defined as the
“differential treatment of in-state and out-of-state economic interests that benefits the former and
burdens the latter.” Id. (internal quotation marks and citation omitted). A statute can discriminate
in three ways: “(a) facially, (b) purposefully, or (c) in practical effect.” Id. (citation omitted).
Under the second step, the Court applies the proper level of constitutional scrutiny to the law
at issue, depending on whether it is discriminatory or nondiscriminatory. SDDS, Inc. v. State of
S.D., 47 F.3d 263, 268 (8th Cir. 1995). A discriminatory law is presumptively invalid, and the legal
standard applied is strict scrutiny. Or. Waste Sys., 511 U.S. at 94 (domestic commerce clause);
Natsios, 181 F.3d at 70 (foreign commerce clause). Such a law will survive strict scrutiny, and
overcome the presumption of invalidity accorded to it, only where “‘the discrimination is
demonstrably justified by a valid factor unrelated to economic protectionism.’” Fort Gratiot, 504
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U.S. at 359 (quoting New Energy Co., 486 U.S. at 274). This requires the defendant to “‘justify [the
law] both in terms of the local benefits flowing from the statute and the unavailability of
nondiscriminatory alternatives adequate to preserve the local interests at stake.’” Chem. Waste
Mgmt. v. Hunt, 504 U.S. 334, 342 (1992) (quoting Hunt v. Wash. State Apple Adver. Comm’n, 432
U.S. 333, 353 (1977)); Natsios, 181 F.3d at 70 (foreign commerce clause).
A state or locality’s burden to justify a discriminatory law is more demanding under the
foreign Commerce Clause than the domestic Commerce Clause. Antilles Cement Corp. v. Calderon,
288 F.Supp.2d 187, 195 (D. P.R., 2003) (“discrimination against foreign commerce is subject to an
even more rigorous test than that applied to the domestic commerce clause”) (citing Wunnicke, 467
U.S. at 100); see also LAURENCE G. TRIBE, AMERICAN CONSTITUTIONAL LAW 1152 (3d ed.
2000) (a law discriminating against foreign commerce “must be shown not to affect national
concerns to any significant degree, a task far more difficult than in the case of interstate commerce”).
This is so because the scope of Congress’ foreign commerce power is greater than its domestic
counterpart, Japan Line, Ltd. v. Los Angeles County, 441 U.S. 434, 448 (1979), and “it is crucial to
the efficient execution of the Nation’s foreign policy that the Federal Government...speak with one
voice when regulating commercial relations with foreign governments.” Wunnicke, 467 U.S. at 100
(internal quotation marks and citations omitted).
If the Court decides that the law at issue is not discriminatory, it will be reviewed under a
more flexible balancing test rather than strict scrutiny. Where the law “regulates even-handedly to
effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental,
it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the
putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (citation omitted).
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In judging whether the burden imposed by the law on interstate or foreign commerce is
unconstitutional, the Court must analyze the type of local interest involved and decide “whether it
could be promoted as well with a lesser impact on interstate activities.” Id.
The Supreme Court has recently considered Commerce Clause challenges to state and local
waste disposal regulations. In every instance, the Court has found the challenged law
unconstitutional. Beginning with City of Philadelphia, the Supreme Court invalidated a New Jersey
statute that prohibited the importation of out-of-state waste, finding that “a State may not accord its
own inhabitants a preferred right of access over consumers in other States to natural resources
located within its borders.” 437 U.S. at 627 (citation omitted). In Fort Gratiot, the Court struck
down a Michigan law that prohibited private landfill operators from accepting waste that originated
outside of their respective counties, because it unconstitutionally permitted Michigan’s eighty-three
counties to isolate themselves from the national economy, and protected them from competition from
out-of-state waste producers. 504 U.S. at 361. The Court has also considered an Alabama law that
imposed a disposal fee on out-of-state hazardous waste, finding that Alabama’s differential treatment
of out-of-state waste violated the Commerce Clause because “[n]o State may attempt to isolate itself
from a problem common to the several States by raising barriers to the free flow of interstate trade.”
Chem. Waste Mgmt, 504 U.S. at 339-40. In C & A Carbone v. Town of Clarkstown, 511 U.S. 383
(1994), the Supreme Court found unconstitutional a local waste flow-control ordinance that required
all solid waste to be processed at a specific transfer station before leaving the municipality, because
it “[d]eprive[d] out-of-state businesses access to a local market.” Id. at 389. Finally, in Oregon
Waste Systems, Inc., the Supreme Court struck down an Oregon law that taxed out-of-state waste
at a higher rate that in-state waste, noting that the state legislation was unconstitutional “[h]owever
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serious the shortage in landfill space may be.” 511 U.S. at 107. In judging the constitutionality of
the Amendments, this Court is guided by the principles enunciated in these cases.
2. Discussion
The Court begins its analysis of the Amendments by determining whether they are
discriminatory, either facially, in effect, or purposefully. If the Court determines that they are
discriminatory, the Amendments are presumptively invalid, and will pass constitutional muster only
if they survive strict scrutiny.
A. The Amendments are Discriminatory
i. Facial Discrimination
The Amendments provide that it shall be unlawful for a Wayne County landfill operator to
accept solid waste “[f]rom a municipality, county, state, country or other generator that is not
regulated by a beverage container deposit law and has bottle return rates comparable to those
reported by the Michigan Department of Treasury for Michigan’s [Bottle Bill].” This language is not
facially discriminatory. It contains no overt distinction between in-state and out-of-state waste, nor
does it expressly bar the entry of out-of-state waste into Wayne County. But cf. Fort Gratiot, 504
U.S. at 355 (New Jersey law prohibited the importation of most “solid or liquid waste which
originated or was collected outside of the territorial limits of the State”) (emphasis added). The
Amendments apply to solid waste from any municipality, county, state or country, including any
municipality or county located within the state of Michigan, and are not discriminatory on their face.
ii. Discriminatory Effect
Next, the Amendments must be scrutinized to determine if they are discriminatory in effect.
C & A Carbone, 511 U.S. at 394 (“[t]hough the...ordinance may not in explicit terms seek to regulate
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interstate commerce, it does so nonetheless by its practical effect and design”). The Court finds that
Plaintiffs have made this showing. The Commerce Clause prohibits a state from isolating itself from
the national and international economy by erecting barriers that impede the flow of interstate and
foreign trade. Id. at 390 (noting that the Supreme Court has “interpreted the Commerce Clause to
invalidate local laws that impose commercial barriers or discriminate against an article of commerce
by reason of its origin or destination out of State”); City of Philadelphia, 437 U.S. at 627-28; Chem.
Waste Mgmt., 504 U.S. at 339-40. Therefore, a law that gains “a local benefit by throwing the
attendant burdens on those without the state[,]” S.C. State Highway Dep’t v. Barnwell Bros., Inc.,
303 U.S. 177, 185-86 (1938), or “deprives out-of-state businesses of access to a local market[,]” has
a discriminatory effect on interstate and foreign commerce. C & A Carbone, 511 U.S. at 389.
Relatedly, “States and localities may not attach restrictions to exports or imports in order to control
commerce in other States.” Id. at 393 (citing Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935)).
A law which “essentially controls the conduct of those engaged in commerce occurring wholly
outside the State...” has an extraterritorial discriminatory effect on interstate and foreign commerce.
Nat’l Solid Wastes Mgmt. Ass’n v. Meyer, 63 F.3d 652, 658 (7th Cir. 1995) (hereinafter “NSWMA
I”); see also New Energy, 486 U.S. at 275 (a state may not condition the removal of an economic
disadvantage on the other state’s passing of reciprocal legislation); Natsios, 131 F.3d at 69
(Massachusetts law that conditioned state procurement decisions on conduct occurring in Burma
violated foreign Commerce Clause by attempting to control conduct beyond state borders).
Here, the Amendments require waste generators to satisfy two criteria before they will be
permitted to deposit their waste in Wayne County. First, they must show that their municipality,
county, state or country is regulated by a beverage container deposit law comparable to Michigan’s.
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Second, they must demonstrate that their municipality, county, state or country has bottle return rates
comparable to those reported for Michigan. Despite Defendants’ assertion that these two conditions
must be satisfied by all municipalities, counties, states and countries, it is clear that the
Amendments, as applied, have a differential and burdensome impact on municipalities and counties
located outside of Michigan, as opposed to those located within the state. Undoubtedly, Michigan
waste generators satisfy the two criteria contained in the Amendments. By virtue of their in-state
residence, they are, by default, subject to the Michigan Bottle Bill, and will have the same bottle
return rates as those reported for Michigan. Consequently, if enforced, the Amendments will grant
waste generated within the state an automatic right of entry to Wayne County landfills.
If the Amendments granted out-of-state waste generators the same immediate right of entry,
the Court would deem them neutral. However, they do not. Most states within the United States,
as well as Canada, do not have beverage container deposit legislation. Waste originating in those
jurisdictions, unlike Michigan waste, is absolutely and permanently barred from Wayne County. As
to the handful of states that have beverage container deposit legislation, none of them has a ten cent
bottle deposit like Michigan’s. Waste generators in those jurisdictions, unlike their Michigan
counterparts, are presumptively prohibited from depositing their waste in Wayne County unless they
demonstrate that their bottle return legislation compares to Michigan’s ten cent deposit and that their
bottle return rates compare to Michigan’s. If these out-of-state generators fail to make this showing,
their waste is barred from Wayne County.
Clearly, the Amendments, if enforced, will reduce the amount of out-of-state and out-of-
country waste imported into Wayne County, but will have no corresponding impact on waste
generated within the state. Therefore, notwithstanding Plaintiffs’ arguments to the contrary, the two
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conditions contained in the Amendments target out-of-state waste only. This kind of differential
treatment, which advantages in-state economic interests over out-of-state economic interests, is
prohibited by the Commerce Clause. E. Ky. Res., 127 F.3d at 543 (“a statute which has a
discriminatory effect, for Commerce Clause purposes, is a statute which favors in-state economic
interests while burdening out-of-state interests”); see also C & A Carbone, 511 U.S. at 389 (finding
that a local flow control ordinance deprived out-of-state businesses of access to a local market, and
therefore, had a discriminatory effect on commerce, by driving up the cost for out-of-state waste
disposal within the state); Chem. Waste Mgmt., 504 U.S. at 342 (Alabama waste regulation
discriminatory where it raised barriers to the free flow of interstate trade by imposing an additional
fee on out-of-state waste processed within the state).
In addition to constituting a barrier to out-of-state waste, the Amendments attempt to control
the conduct of out-of-state waste generators engaged in interstate and foreign commerce. If a waste
generator resides in a state or country that does not have a bottle bill comparable to Michigan’s, the
barrier will be overcome only if the generator’s place of residence creates beverage container
legislation and bottle return rates consistent with Michigan’s. This effort by Defendants to impose
its recycling standards on outside jurisdictions is condemned by the Commerce Clause. Nat’l Solid
Wastes Mgmt. Ass’n v. Meyer, 165 F.3d 1151, 1154 (7th Cir. 1999) (hereinafter “NSWMA II”)
(holding that the Constitution does not permit a state to “limit interstate traffic to waste originating
in jurisdictions that have enacted particular ordinances”). In a case nearly identical to the one at bar,
the Seventh Circuit struck down a state law that prohibited the disposal of out-of-state waste in
Wisconsin where the waste was generated in a region that had not adopted key parts of the state’s
recycling program. NSWMA I, 63 F.3d at 652. The law imposed the burden of compliance on all
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citizens of a participating community, regardless of each citizen’s intent to dump waste in
Wisconsin. The court found the statute to be a discriminatory attempt by the state to regulate
interstate commerce because it “condition[ed] the use of Wisconsin landfills by non-Wisconsin
waste generators on their home communities’ adoption and enforcement of Wisconsin recycling
standards...” Id. at 658. According to the Court, the law created “[a]n embargo on waste from a
hauler from another state, or a community within that state, unless that political entity has decided
to adopt the Wisconsin view of environmental management.” Id. at 661-62. When the Seventh
Circuit later revisited a modified version of the statute in NSWMA II, it rejected it once again,
holding that “[n]o state has the authority to tell other polities what laws they must enact or how
affairs must be conducted outside its borders.” 165 F.3d at 1153 (citations omitted).
Here, the Court finds that the Amendments suffer from the same fatal flaws as those present
in the Wisconsin law at issue in NSWMA I and NSWMA II. In particular, the Amendments
implicitly condition the use of Wayne County landfills by non-Michigan waste producers on their
home communities’ enactment of legislation equivalent to the Michigan Bottle Bill. In this sense,
the Amendments create an embargo on the entry of non-Michigan waste into Wayne County that will
be lifted only when outside jurisdictions adopt Michigan’s approach to solid waste management.
The extraterritorial effect of the Amendments will be equally as sweeping as that in NSWMA I and
NSWMA II. If an out-of-state jurisdiction decides to enact a new beverage container regulation, all
of its citizens will be subject to that law, regardless of whether they intend to dispose of their waste
in Wayne County. The Court admonishes Wayne County for attempting to force its view of
2Defendants attempt to distinguish this case from NSWMA I and NSWMA II on thegrounds that the law at issue in those cases imposed the whole of Wisconsin’s recycling programon out-of-state waste generators, whereas the Amendments involve only a single piece oflegislation, namely the Michigan Bottle Bill. The Court finds that this distinction, if it can evenbe called that, is immaterial. Regardless of whether the statute at issue covers an entireregulatory system or an isolated ordinance, it is unconstitutional if its effect is discriminatory.
3In Hardage v. Atkins, 582 F.2d 1264 (10th Cir. 1978), the court found that theordinance’s mandatory reciprocity clause violated the Commerce Clause of the Constitution.
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environmental conservation on the citizens of its sister states and Canada in this manner.2
Furthermore, in Hardage v. Atkins, 619 F.2d 871 (10th Cir. 1980), the Tenth Circuit struck
down a similar Oklahoma waste disposal regulation that prohibited the shipment of controlled
industrial waste into the state unless the state of origin enacted “substantially similar standards for
controlled industrial waste disposal as, and...entered into a reciprocity agreement with, the State of
Oklahoma.” The court declared the “substantially similar standards” language of the ordinance
unconstitutional on the grounds that it “imposes an economic embargo on all incoming shipments
[of waste], unless and until the state of origin enacts a law prescribing standards which are
substantially similar to those of Oklahoma.” Id. at 873.3 The scope of that statute was found to be
unconstitutionally broad in that it “reaches out and seeks to force the enactment in the state of origin
of a statute with standards similar to Oklahoma.” Id. Here, the Amendments have the same effect
as the “substantially similar standards” language deemed unconstitutional in Hardage. By refusing
to accept waste from states, counties, or countries that do not have bottle return legislation and bottle
return rates comparable to Michigan’s, Defendants essentially require non-Michigan jurisdictions
to enact recycling standards that are “substantially similar” to those established in Michigan. As
Hardage makes clear, such action on the part of Defendants is barred by the Commerce Clause.
The Court rejects Defendants’ assertion that the Amendments are neutral since they regulate
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or burden Michigan and non-Michigan waste evenhandedly. In so arguing, Defendants claim that
“discrimination requires that something be required of out-of-state actors that is not required of in-
state actors.” Even by Defendants’ own definition of discrimination, the Amendments are not
neutral. As discussed above, in order to meet the requirements of the Amendments, nothing is
required of Michigan waste generators. Out-of-state waste generators, however, must demonstrate
that their beverage container regulation laws and bottle return rates compare to Michigan’s. If they
cannot make this threshold showing, they can either urge their legislative body to enact a conforming
law (and hope that it does), or deposit their waste elsewhere.
To that end, Defendants’ reliance on Sporhase v. ex. rel. Douglas, 458 U.S. 941 (1982), is
misplaced. In Sporhase, plaintiffs challenged a state law that restricted the withdrawal of ground
water from any in-state well for use in an adjoining state. While the Court ultimately invalidated the
law under the Commerce Clause, it was first found to be nondiscriminatory, since it equally
burdened intrastate and interstate transfers of water. The Court explained that “a State that imposes
severe withdrawal and use restrictions on its own citizens is not discriminating against interstate
commerce when it seeks to prevent the uncontrolled transfer of water out of the State. An exemption
for interstate transfers would be inconsistent with the ideal of evenhandedness in regulation.” Id.
at 955-56; see also Minn. v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) (Minnesota statute that
prohibited all milk retailers from selling their milk products in plastic, nonreturnable containers
found to be nondiscriminatory where it regulated without regard to whether the milk, containers, or
sellers are from outside the state). The Court’s holding in Sporhase is inapplicable here, since the
Amendments do not restrict the actions of Wayne County and Michigan residents in any way. They
restrict only the ability of non-Michigan waste generators to deposit their waste in Wayne County,
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and, for this reason, do not regulate in-state and out-of-state waste evenhandedly.
In any event, even if Defendants are correct that the Amendments apply to in-state as well
as out-of-state waste, the Supreme Court has held this fact, alone, is not dispositive as to a finding
of neutrality. To the contrary, “‘a burden imposed by a State upon interstate commerce is not to be
sustained simply because the statute imposing it applies alike to the people of all the States,
including the people of the State enacting such statute.’” Fort Gratiot, 504 U.S. at 361 (quoting
Brimmer v. Rebman, 138 U.S. 78, 82-83 (1891)). For instance, in Fort Gratiot, the state argued for
the neutrality of its waste regulation on the grounds that it treated waste from Michigan counties no
differently than waste from other states. The Court dismissed that argument, finding that because
the law impermissibly authorized Michigan’s counties to isolate themselves from the national
economy by excluding non-county waste from their landfills, it was immaterial that it allegedly
burdened in-state and out-of-state waste generators alike. 504 U.S. at 360. Similarly, in C & A
Carbone, the Supreme Court rejected the town’s argument that its ordinance was nondiscriminatory
since it applied to all solid waste regardless of its in-state or out-of-state origin. In striking down the
law, the Court noted that “[t]he ordinance is no less discriminatory because in-state or in-town
processors are also covered by the prohibition.” 511 U.S. at 391; see also NSWMA I, 63 F.3d at 659
(“‘the Commerce Clause precludes the application of a state statute to commerce that takes place
wholly outside of the State’s borders, whether or not the commerce has effects within the State...’”)
(quoting Healy v. Beer Institute, 491 U.S. 324, 336 (1989)). Accordingly, in the instant case,
because the discriminatory effect of the Amendments is clear, the Court will not consider them
neutral simply because they purport to impact in-state interests.
Furthermore, the Court finds that Defendants’ reliance on Eastern Kentucky Resources,
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where the Sixth Circuit upheld a Kentucky statute that required in-state counties to prepare waste
management plans that identified additional capacity for out-of-state waste, is also misplaced. There,
the court found that the statute did not have a discriminatory impact on interstate commerce because
there was no evidence “that [the] state law treats in-state economic interests differently than out-of-
state economic interests...” 127 F.3d at 544. Here, however, by showing that the Amendments will
affect only those waste generators located outside of Michigan, Plaintiffs have demonstrated that the
Amendments treat in-state economic interests differently than out-of-state interests.
iii. Purposeful Discrimination
Since the Court concludes that the Amendments are discriminatory in effect, it need not
determine whether they were enacted with a discriminatory purpose. However, because Plaintiffs
have submitted ample evidence that the Amendments purposefully discriminate against out-of-state
waste, the Court will briefly discuss this issue.
A party challenging the constitutionality of a state law under the Commerce Clause can
establish purposeful discrimination in one of two ways. It can either introduce “[t]he state’s own
self-serving statement of its legislative intent[,]” or, in the absence of such self-serving statements,
submit any other evidence that “indicate[s] the presence of actual and discriminatory purposes.” E.
Ky. Res., 127 F.3d at 542. Here, the preamble to the Amendments provides that its purpose is “to
conserve landfill space, contain disposal costs, and encourage the recycling of plastic and glass
containers,” and contains no self-serving statements of discriminatory legislative intent.
Nevertheless, Plaintiffs present three public statements made by the Wayne County Department of
Environment and Ficano that suggest that Defendants enacted the Amendments to exclude Canadian
waste from Wayne County. First, Plaintiffs submit a statement from the Wayne County Department
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of Environment’s website, which provides:
With the recent events surrounding the transference of Toronto, Ontario’s refuseinto Wayne County landfills, the Wayne County Department of Environment isclosely monitoring the ongoing developments. The Department of Environmentis responsible for coordination and planning of the County’s solid waste disposalneeds. Wayne County Executive Robert Ficano is opposed to Canadian wastecoming into Wayne County and the State of Michigan. Mr. Ficano has publiclystated: “We are committed in Wayne County to making sure the trash comingfrom across the border isn’t dumped into our county. We want to stop the trashfrom coming from Canada onto our land. This is not just a Wayne Countyproblem. It is a regional issue.” (Pls.’ Br., Ex. 4).
Second, a short article entitled “Michigan: Canada’s Dumping Ground” in the Winter, 2003
edition of the Wayne County Department of Environment News, includes the following statement:
Wayne County is opposed to having trash from Canada dumped in our landfills.Wayne County Executive, Robert A. Ficano, has formed a task force to look intoour landfills. The basic goals of the task force are as follows: investigate thepossibility of enacting a county ordinance prohibiting the disposal of returnablebottles (Michigan Bottle Bill containers) thereby restricting their entry into thecountry... (Pls.’ Reply Br., Ex. 16).
Third, Plaintiffs offer an August 18, 2003 article from the Detroit News, which contains the
following quote from Ficano:
I believe the [Amendments] would perhaps get Ontario’s attention and otherswho don’t have the recycling standards we do. It is cost-effective for them tokeep their own trash. We did not want to be the trash capital of the Midwest orthe United States. (Pls.’ Reply Br., Ex. 17).
Given these statements, the Court is persuaded that Defendants designed the Amendments,
in large part, to keep Canadian trash out of Wayne County, and, correspondingly, to conserve landfill
space for Michigan waste. Such purposes are prohibited by the Commerce Clause. C & A Carbone,
511 U.S. at 390 (holding that “local laws that impose commercial barriers or discriminate against
an article of commerce by reason of its origin or destination out of State” are invalid); see also City
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of Philadelphia, 437 U.S. at 627 (“a State may not accord its own inhabitants a preferred right of
access over consumers in other States to natural resources located within its borders”) (citations
omitted).
Defendants argue that Ficano’s statements are irrelevant to a finding of purposeful
discrimination because he did not sign the Amendments into law. The Court acknowledges that it
was Wayne County’s legislative body, the Wayne County Commission, and not Ficano, that passed
the Amendments. However, there can be little doubt that Ficano was significantly involved in the
drafting and passing of this law. Indeed, it is Defendants who state in their Response to Plaintiffs’
Motion for Declaratory and Injunctive Relief that Ficano, as Wayne County Executive, was partly
responsible for introducing the Amendments to the Wayne County Commission. Therefore, his
public statements on behalf of Wayne County are relevant to a finding of discriminatory purpose.
The Court makes no conclusive ruling on this issue, however, since its finding of discriminatory
effect suffices to trigger strict scrutiny under the Commerce Clause.
B. The Amendments Are Invalid
Because the Amendments discriminate against interstate and foreign commerce, they are per
se invalid. C & A Carbone, 511 U.S. at 392; Natsios, 181 F.3d at 67. To overcome this presumption
of invalidity, Defendants bear the burden of showing that “the discrimination is demonstrably
justified by a valid factor unrelated to economic protectionism.” Wyoming v. Oklahoma, 502 U.S.
437, 454 (1992) (citation omitted). The burden upon Defendants is a heavy one, and heavier still
with respect to Plaintiffs’ foreign Commerce Clause challenge, as a discriminatory law will be
deemed valid only “in a narrow class of cases in which the municipality can demonstrate, under
rigorous scrutiny, that it has no other means to advance a legitimate local interest.” C & A Carbone,
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511 U.S. at 392 (citation omitted).
Defendants argue that the Amendments withstand rigorous scrutiny because they are the sole
means by which the county can advance its legitimate objectives of landfill preservation and the
promotion of recycling. According to Defendants, unrecycled beverage container waste
unnecessarily occupies landfill space, contributes to litter, and leads to the application of virgin
materials and crude oil in the production of new beverage containers. Defendants maintain that the
only way to protect their resources is through the enactment of beverage container deposit
legislation.
The Court does not deny the importance of the local interests asserted by Defendants. City
of Philadelphia, 437 U.S. at 625 (recognizing as valid the state’s interests in reducing waste disposal
costs and saving remaining open lands from pollution). However, “when legislating in areas of
legitimate local concern, such as environmental protection and resource conservation, [localities]
are nonetheless limited by the Commerce Clause.” Clover Leaf Creamery Co., 449 U.S. at 471.
Therefore, to survive strict scrutiny, Defendants cannot rest upon the mere assertion of a legitimate
purpose. They must explain why they are required to treat in-state commerce differently than out-of-
state commerce in order to achieve that purpose. The Court will scrutinize Defendants’ claimed
goals carefully, bearing in mind that “the evil of protectionism can reside in legislative means as well
as legislative ends.” City of Philadelphia, 437 U.S. at 626.
The Supreme Court has made clear that a state or locality cannot treat in-state waste
differently than out-of-state waste simply to preserve landfill space. In City of Philadelphia, the
Court held that “a State may not accord its own inhabitants a preferred right of access over
consumers in other States to natural resources located within its borders.” 437 U.S. at 627; see also
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Chem. Waste Mgmt, 504 U.S. at 339-40 (“[n]o State may attempt to isolate itself from a problem
common to the several States by raising barriers to the free flow of interstate trade”); Or. Waste Sys.,
511 U.S. at 107 (finding that a discriminatory law that sought to advance goals of conservation was
unconstitutional no matter how “serious the shortage in landfill space may be”). Therefore, a state
or locality seeking to conserve landfill space can create a uniform regulation that “slows the flow of
all waste entering into the State’s remaining landfills[,]” but it cannot accomplish that goal by
“discriminating against articles of commerce coming from outside the State unless there is some
reason, apart from their origin, to treat them differently.” City of Philadelphia, 437 U.S. at 626-27.
Here, Defendants cannot achieve their goal of landfill preservation by enacting parochial legislation
that discriminates against interstate commerce. If the Amendments are to pass constitutional muster,
Defendants must justify them on other grounds.
Defendants attempt to justify the Amendments based on the fact that they promote recycling.
In a very broad sense, Defendants are correct that the Amendments will meet this objective. By
obstructing the entry of out-of-state waste into Wayne County, the Amendments force other
jurisdictions to adopt Michigan’s recycling standards. However, notwithstanding the fact that the
Commerce Clause prohibits this kind of extraterritorial effect, Defendants neglect to explain why
they cannot achieve their goal without discriminating against interstate and foreign commerce. For
example, they do not support their position that the Amendments are necessary with evidence that
out-of-state waste generators are less successful at recycling than Michigan. In fact, as Plaintiffs
submit, the record reflects that some non-Michigan jurisdictions, namely Canada, maintain a
recycling and waste diversion program that parallels, if not exceeds, Michigan’s.
Likewise, Defendants do not identify any of the alternative, nondiscriminatory, measures
4 Perhaps the outcome of this case would be different if Defendants could show that out-of-state waste was more hazardous or dangerous that waste generated within the state. TheSupreme Court has acknowledged that a discriminatory local law might survive strict scrutiny ifit protects the health of local citizens from dangerous out-of-state waste. Fort Gratiot, 504 U.S.at 367. However, Defendants make no such argument here, and the record contains no evidencesuggesting that non-Michigan waste poses a unique health threat to Michigan residents. Chem.Waste Mgmt., 504 U.S. at 343-44 (waste regulation invalid where “there is absolutely noevidence...that waste generated outside Alabama is more dangerous than waste generated inAlabama”).
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considered and rejected by the Wayne County Commission prior to the passing of the Amendments.
Without such evidence, Defendants fail to support their assertion that the Amendments constitute
the only way by which Defendants can achieve their goal. C & A Carbone, 511 U.S. at 393
(discriminatory waste regulation invalid where defendant did not consider a number of
nondiscriminatory alternatives, including “uniform...regulations enacted without the object to
discriminate”); Fort Gratiot, 504 U.S. at 367 (finding that state could achieve its conservation goal
without discriminating between in-state and out-of-state waste, such as by limiting the amount of
waste accepted by landfill operators per year).4 Therefore, the Amendments do not withstand the
Court’s strict scrutiny under the domestic Commerce Clause, or its heightened level of strict scrutiny
under the foreign Commerce Clause. Consequently, the Amendments do not meet constitutional
standards.
V. CONCLUSION
For the reasons stated above, the Court declares Section 141.1 through Section 141.3 of the
Wayne County Amendments unconstitutional. The Court hereby GRANTS Plaintiffs’ Motion for
Declaratory Judgment and DENIES Defendants’ Motion for Declaratory Judgment and Summary
Judgment.
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IT IS SO ORDERED.
DATED: February 03, 2004 __/s/____________________________HON. MARIANNE O. BATTANIUNITED STATES DISTRICT JUDGE
